State v Salesh Kumar Verma HAC042S.07S - Law Fiji

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IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
Criminal Case No: HAC 042 of 2007
STATE
v.
SALESH KUMAR VERMA
Hearing: 17 th June – 23 rd June 2008
Sentence: 24 th June 2008
Counsel:
Mr. P. Bulamainaivalu for State
Mr. D. Prasad for Accused
SENTENCE
Salesh Kumar, you have been found guilty of
manslaughter by gross negligence and convicted. On the 17 th
of February 2005, the deceased, who was drunk, stood in the
middle of the road outside Village 6 cinema, and banged on
your windscreen. Instead of stopping your vehicle and
getting help, you drove off with the deceased hanging on to
the front of your vehicle until he fell off outside the
Handicraft Centre. The deceased died of septicemia and
bronco-pneumonia two months later as a result of the head
injuries he received.
There is much in this case in your favour. I accept
that you were afraid when the deceased behaved in this way
and that you panicked. I accept that you drove straight to

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the Central Police Station to report the matter. I accept
that you checked on the welfare of the deceased, and gave a
frank account of the incident to the police. I also accept
that this incident has been hanging over your head for two
years. You are a first offender, married with two infant
children and a keen member of the Assemblies of God church.
These are all matters in your favour. You are additionally
a self-employed 28 year old man with your own business of
aluminium joinery.
However, the deceased died because you were grossly
negligent with his welfare. Drunk people do not always act
rationally and you failed to act in a way which a prudent
and reasonable driver would have acted. Further, his was a
slow death with the head injuries leading to surgery and
complications. Clearly your conduct calls for criminal
sanction.
In State v. Ashwin Kumar HAC 037 of 2007 Mataitoga J
reviewed sentencing tariffs for manslaughter with gross
negligence. In that case, the accused drove a bicycle with
defective brakes and hit the deceased causing death. He
sentenced the accused to 16 months imprisonment, suspended
for 2 years.
In the course of his sentencing remarks he referred to
the following cases of manslaughter by gross negligence:
“A review of the relevant case law in the High
Court of Fiji, with regard to sentences in
manslaughter by gross negligence reveals the
following:
a) In State v. Metuisela Toka HAC 008/2003 –
the High Court sentenced the accused to 9
months imprisonment. This was a case where
the father of an 11 year old child threw a

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spear at her in the early hours of the
morning believing her to be a pig.
b) In State v. Sitiveni Rokaria HAC 017/2003 –
the High Court sentenced the accused to 12
months imprisonment suspended for 2 years.
The accused was the driver of a boat taking
some family friends from overseas, who
wanted to go to an offshore island for a
picnic. The boat was licenced to carry 10
passengers and the accused told the
passengers that he can only take 10 but his
father overruled him and he took 14
passengers instead. The boat capsized and
two passengers died from drowning. Accused
was charged with 2 counts of manslaughter
by gross negligence.
c) In State v. Apolosi Waqalaivi HAC 08/1995S
– The High Court sentenced the accused to 2
years imprisonment suspended for 3 years.
This was a case involving the death of an 8
year old child due to the gross negligence
of a boat driver who drove his boat close
to where some children were swimming. The
accused did not see the deceased and ran
over the child causing him to die.
d) In State v. Josaia Boseiwaqa & Anor HAC
032/07 – The High Court sentenced the two
accused persons to 2 years imprisonment
suspended for 3 years. This case involved
the death by drowning of 2 persons who were
passengers on boat travelling from Deuba to
Beqa island. The boat was overloaded with
passengers and the two accused person
persons were the drivers of the boat. They
were not paid for their work.”
He found that the tariff for the offence was 2 to 3
years imprisonment but that the majority of the cases
resulted in suspended sentences. In suspending the sentence
in the case before him, he relied on the lack of any
premeditation, the fact that the accused conveyed the
deceased to the hospital, the accused’s previous good
character, youth and co-operation with the police.

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In this case, I do not consider that a suspended
sentence is the appropriate sentence. I accept your real
remorse and fear at the time of the accident, and although
your fear does not justify your lack of reasonable care, but
it is a mitigating factor. I consider that I should order
a community-based sentence for you rather than a suspended
sentence, because it requires more work from you to pay what
I consider to be your debt to society for taking the life of
the deceased. I consider that your sentence should be
supervised by the Pastor of your church, who must report to
the court of your satisfactory service of your sentence
after half of it has been served, then on completion.
I order that you serve 200 hours of community work
under the supervision of your Assemblies of God Pastor. You
must serve this time within 6 months of this sentence.
At Suva
24 th June 2008
Nazhat Shameem
JUDGE